Chief Justice John Roberts is a busy man. He didn’t wrap up his first day of presiding over the third Senate impeachment trial in history until shortly after 2:00 a.m. on Wednesday. By 10:00 a.m., he was attending to more-ordinary business as oral arguments began in the most important religious-liberty case before the Supreme Court this term, Espinoza v. Montana Department of Revenue.
In 2015, Montana set up a tax-credit system through which taxpayers could contribute $150 to a scholarship fund for children attending private schools and would then be reimbursed dollar for dollar. The Montana supreme court scrapped the program on the grounds that it violated the state constitution’s Blaine amendment, which forbids public funds from aiding religious schools. In response, a lawsuit was filed by Kendra Espinoza, a single mother of two who had benefited from the program.
“This case asks whether the federal Constitution allows the wholesale exclusion of religious schools from scholarship programs. It does not. Yet, Montana’s Blaine Amendment requires that exclusion,” Espinoza’s lawyer, Richard Komer, argued before the Court on Wednesday. “If the Court had shut down the program because it included Muslim schools or African-American schools, there’s no question that would be unconstitutional.”
Komer pointed to the Court’s 2017 decision in Trinity Lutheran, which held by a 7–2 majority that the state of Missouri could not exclude religious schools from a state program meant to fund the resurfacing of playgrounds at secular private schools. “As Trinity Lutheran made clear, the rule is religious neutrality,” Komer said.
Justices Alito and Kavanaugh appeared to agree. The state isn’t required to “fund private education at all, but if they choose to provide scholarships that are available to students who attend private schools, they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church,” said Alito. “That’s the simple argument. And it’s hard to see that that’s much different from Trinity Lutheran.” Justice Kavanaugh said that Blaine amendments were “certainly rooted in grotesque religious bigotry against Catholics.” Adam Unikowsky, arguing for the state of Montana, said that wasn’t a problem because Montana re-adopted the amendment at its 1972 convention in order to protect religions from being coerced by the state.
Justice Elena Kagan, who joined the majority in Trinity Lutheran, argued that Espinoza was “a far cry from” that case, because the Montana scholarship program would subsidize religious activity and education, rather than merely providing a religiously neutral benefit such as resurfacing a playground.
On the whole, the liberal justices focused most of their questioning on the argument that the previous beneficiaries of the program, such as Espinoza, didn’t have standing to sue because the program no longer exists and thus no students from religious or secular schools may benefit from it. “These parents are treated no differently than parents of children who are going to secular private schools, so where is the harm?” Justice Ruth Bader Ginsburg asked.
Justices Kagan and Sonia Sotomayor appeared to agree with Ginsburg, but Chief Justice Roberts later exposed the problem with her question by posing his own hypothetical: What if, he asked, a state legislature decided to shut down parks and pools because a higher percentage of African-Americans benefited from them?
“That wouldn’t be good under your view, would it? Because they’re shutting down the whole program?” Roberts asked. “How is that different than religion, which is also protected under the First Amendment?”
The difference, the lawyer for the state of Montana argued, is that there are “principled reasons, deeply rooted in national tradition dating back to Madison, [why] we have a preference to not fund religious activities — not prohibit it but not fund it.”
Justice Roberts and Justice Stephen Breyer both expressed concern about whether a decision in favor of Espinoza could lead states to be compelled to directly fund private religious schools simply because they fund public schools. So while Roberts seemed skeptical of Ginsburg’s contention that Ms. Espinoza lacked standing to sue because the program had been shut down, it remained unclear how he or Breyer would vote in the case. Religious liberty had a promising day before the Court on Wednesday. But we likely won’t know the ultimate outcome of the case until early this summer.